A self-proving Will is a type of Will that includes an affidavit or a sworn statement signed by witnesses and notarized. This affidavit serves as evidence that the will was executed properly and that the testator had testamentary capacity at the time of signing. By including a self-proving affidavit, the will can be admitted to probate without requiring the witnesses to testify in court to confirm its validity.
Difference Between a Notarized Will and Self-Proving Will
It’s easy to get confused between a notarized Will and a self-proving Will. However, these two concepts are not the same. The key difference between a self-proving Will and notarizing a Will lies in the purpose and effect of each process.
A self-proving Will includes a separate self-proving affidavit that is attached to the will itself. This affidavit is signed by the testator and the witnesses, and it is notarized by a notary public. The purpose of the self-proving affidavit is to provide evidence that the Will was executed properly and that the testator had testamentary capacity at the time of signing. By including a self-proving affidavit, the will can be admitted to probate without requiring the witnesses to testify in court to confirm its validity. The self-proving affidavit essentially serves as a substitute for witness testimony in probate proceedings.
Notarizing a Will involves having the testator's signature on the will notarized by a notary public. Notarization is a process where a notary public verifies the identity of the person signing the document and confirms their voluntary intent to sign. Notarization does not necessarily make the will self-proving. It primarily serves to provide additional authentication and verification of the testator's signature.
How to Make a Self-Proving Will
To create a self-proving Will, the following steps are typically followed:
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Draft the Will: The testator (the person creating the will) works with an attorney or uses a template to draft a valid Will that meets the legal requirements of their local jurisdiction.
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Execute the Will: The testator signs the will in the presence of two or more witnesses who are not beneficiaries or heirs named in the Will. The witnesses should observe the testator's signing and acknowledge that they are witnessing the execution of the Will. It’s important to review the witness requirements for the state where you live to ensure that you comply with the law. FastWill makes this easy because we have done this work for you.
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Prepare the self-proving affidavit: The self-proving affidavit is a separate document attached to the Will. It includes a sworn statement by the testator and the witnesses, attesting that the Will was signed voluntarily and in their presence, and that they believe the testator to be of sound mind and over the legal age of testamentary capacity. The affidavit must be signed by the testator and the witnesses and notarized by a notary public.
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Store the Will and affidavit: It is crucial to keep the original will and the self-proving affidavit in a safe and easily accessible place. Inform the executor and trusted family members or friends about the location of the documents.
By including a self-proving affidavit, the process of probating the Will becomes more streamlined. When the testator passes away, the court can accept the Will as self-proven based on the notarized affidavit, which eliminates the need for the witnesses to testify in court to validate the Will's execution. However, there are also some drawbacks to using a self-proving Will.
Disadvantages of Self-Proving Wills
While self-proving Wills can offer certain advantages, it's important to be aware of potential drawbacks or considerations associated with them. Here are a few points to keep in mind:
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Additional formalities: Creating a self-proving will requires additional steps compared to a regular Will. It involves the preparation and execution of a separate self-proving affidavit, which needs to be signed by the testator, witnesses, and notarized. This adds complexity and may require extra time and effort.
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Witness availability: In a traditional Will, witnesses can be called upon to testify in court if there are challenges to the Will's validity. With a self-proving Will, the witnesses' testimony may not be required since the affidavit serves as evidence of execution. However, it means that if the witnesses are no longer available or cannot be located when needed, their testimony cannot be obtained, potentially affecting the ability to defend the Will if it is challenged.
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Cost considerations: The additional notarization and possibly the involvement of an attorney for the preparation of the self-proving affidavit may lead to additional costs compared to a regular Will. It's important to consider the financial implications and determine if the benefits of a self-proving Will outweigh the associated expenses.
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Privacy concerns: By including a self-proving affidavit, the Will and its contents become a matter of public record since it is filed with the court during probate. This means that the beneficiaries, assets, and other information may be accessible to the public. If privacy is a concern, alternative estate planning strategies or trust-based arrangements might be more appropriate.
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Limited flexibility for changes: Once a self-proving Will is executed, making changes or amendments may require additional steps and documentation. If you anticipate frequent updates or modifications to your estate plan, a self-proving Will may not provide the desired flexibility, and you may need to consult with an attorney to explore alternative options.
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Jurisdictional considerations: The acceptance and recognition of self-proving wills may vary by jurisdiction. While they are generally accepted in many states, it's important to ensure that the self-proving Will is legally valid and enforceable in your specific jurisdiction. Consulting with an estate planning attorney familiar with the laws in your area can help ensure compliance.
Conclusion
Overall, a self-proving Will provides additional assurance and simplifies the probate process by providing evidence of the Will's validity without requiring additional testimony from witnesses. Remember, notarizing a Will involves the notary public verifying the signature on the document, while a self-proving Will includes a separate affidavit, signed by the testator and witnesses, which is notarized to serve as evidence of the will's validity.
It's important to note that the requirements for self-proving Wills do vary by jurisdiction, so it is advisable to consult with an attorney familiar with the laws in your specific area to ensure you closely follow local regulations. Or alternatively, simply use an online DIY platform like FastWill which has already consulted with lawyers in your area to create valid Wills.
